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#CorruptionStop

Time to lock up dishonourable parliamentarians

Canute Thompson

Thursday, August 08, 2019

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Prime Minister Andrew Holness has found himself in an unenviable, awkward, embarrassing, and tricky legal position. Section 39 of the Integrity Commission Act stipulates that every person who is a parliamentarian or public official “shall make a statutory declaration of his assets and liabilities and his income…” Section 41 of the Act states that in circumstances in which a person becomes a public official or parliamentarian after June 30 in any year, the declarations are due by December 31 of the following year and then December 31 in each subsequent year. He was a parliamentarian before the February 2016 election and so would have been required to file declarations prior to 2016.

With the election having been held before June 30 (2016) the declarations for 2016 would be due by December 31, 2016 and those for 2017 by December 31, 2017, and those for 2018 by December 31, 2018.

Section 41, Subsection 4 of the Act gives each person who is required to file a further three months from December 31, that is to March 31, to file. Section 41, Subsection 6 indicates that where a person fails to file within the time specified the commission may issue a notice in writing to the person giving that person 30 days to file.

As of August 7, 2019, the prime minister's declarations for 2017 and 2018 remain uncleared. Is it enough that the prime minister, as he has claimed, has made a declaration, or is the larger issue that he has not been cleared? And is the failure to obtain clearance not a matter of grave public concern?

And, even if he has filed, having not been cleared in relation to his 2017 declarations for 20 months and, given that we have heard nothing of his 2018 declarations, should we not be deeply concerned? Can we put up with a prime minister who is unable to satisfy the requirements of the anti-corruption agency concerning the soundness of his declarations?

Clear and present danger

This is not the first time that Holness has found himself in an ugly position with the law. The first — and most humiliating — was in 2015 when he used pre-signed and undated letters of resignation to oust Arthur Williams and Christopher Tufton from the Senate. Williams challenged the matter and the Constitutional Court ruled that the procurement and use of the letters were unlawful and unconstitutional. Although Holness apologised to Tufton and Williams — but sadly not to the people of Jamaica — he brought the matter before the Court of Appeal, which upheld the ruling of the lower court. In some countries Holness would be expected to resign as leader of the party and would be deemed unfit to become prime minister.

As prime minister, Holness sought to appoint the chief justice on a probationary basis, even though there was a clear vacancy, and said that he would confirm the appointment based on performance, arguing, “actions that brings (sic) results would…” determine full appointment. In response, members of the otherwise quiet and focused judiciary revolted when 97 of them shut down the justice system for a day and met to pen a letter to the prime minister. Even that did not move him. It was not until the Jamaican Bar Association threatened to take the matter to the Privy Council that he retreated.

The disposition of a prime minister to violate the very laws and constitution which he or she swears to uphold cannot be seen as anything but a clear and present danger to society. Regardless of how well the economy may be doing under such a prime minister, disregard for the rule of law places the society on a slippery slope.

This is particularly urgent and relevant given that in the Government's medium-term plan the rule of law is presented as central, and the Government is seeking to make laws which give the prime minister more and more executive authority to effect decisions without seeking the consent of Parliament. It is also to be recalled that this is the same prime minister who proceeded to spend on a national identification system (NIDS) while the country awaited a ruling from the court on whether aspects of the law which supports it were unconstitutional.

But back to the issue of the prime minister's integrity declarations. After months of waiting and claims and counter-claims as to whether Holness had satisfied the queries of the Integrity Commission, Robert Morgan, parliamentary secretary in the Office of the Prime Minister, gave the country a blanket and unequivocal assurance that the declarations would be made public on July 26, 2019. It is now two weeks later and that promise has not been fulfilled. This kind of conduct should not be allowed to become the new normal. In the USA, President Donald Trump has normalised dishonour. We should not allow Jamaica to follow suit.

Criminal offence?

Does the failure of the prime minister to obtain clearance from the Integrity Commission rise to the level of a criminal offence? Subsection 7 of Section 41 of the Integrity Commission Act states that:

“A person who fails to file a declaration within the time specified…commits an offence and is liable on summary conviction in a Parish Court, in addition to any penalty imposed under section 43 (1) to a further fine of twenty-five thousand dollars for each month during which such offence continues after the thirty-day period referred to in subsection (6).”

If it is the case that having filed, even if not cleared, a declarant is deemed compliant with the law, then the law is an ass. I would readily conclude that the law, as written in letter and spirit, contemplates clearance as the act of completion. If this is so, then the fines referred to in Subsection 7 would start running from April 2017 for the 2016 declaration; and from April 2018 for the 2017 declarations; and, in the case of the 2018 declarations, from April 2019. These would continue until the requirements of the law are satisfied. But $25,000 per month is monkey money for people like the prime minister. For, at a maximum, as at July 31, 2019 the prime minister would be subject to a fine of $1.75 million; $1.25 million of which is for each month and the further $500,000 based on the provisions of Section 43.

I am of the view that part of the reason public officials are sometimes so cavalier with the law is that being sent to prison for violating same is highly unlikely. In the case of this anti-corruption statute, it is left to the discretion of the judge. Section 43 states that the fine of $500,000 may be imposed or a prison term not exceeding six months. Section 43 goes even further to make it easy on the person who violates the law by giving the judge the discretion of merely making an order mandating the person to comply with the law.

If Jamaica is serious about anti-corruption, then not only should prison time be mandatory for public officials, including parliamentarians, who break the law, but the prison time should be more severe. I therefore would propose an amendment to Section 43 of the Integrity Commission Act to read that individuals who are found guilty would be subject to both fine and imprisonment – a fine of $5 million and imprisonment of between 18 and 36 months.

#CorruptionStop

I have started a movement called #CorruptionStop. I am calling on people to join the movement. You can begin by tweeting and retweeting #CorruptionStop or #StopCorruption. #CorruptionStop is intended to operate like Crime Stop. I am currently in discussions with various entities with a view to set up a formal operation that will reward public servants who out or expose public corruption. I plan to donate to the movement. I urge others to donate.

The Integrity Commission has failed to live up to its promise of making Jamaica the least corrupt place on the Earth. We, as citizens, must take matters into our own hands. A booming economy is no excuse to turn a blind eye to corruption. In fact, when there is rampant corruption, a booming economy is a gift to people who are corrupt. It is time we end the “whataboutism” and the “PNP did it too”. Corruption sucks billions of dollars from the economy and places it in the pockets of a few connected persons. It is time for citizen action to stop corruption.

Dr Canute Thompson is chair of the People's National Party's Policy Commission, as well as head of the Caribbean Centre for Educational Planning and lecturer in the School of Education, and co-founder and chief consultant for the Caribbean Leadership Re-Imagination Initiative, at The University of the West Indies, Mona. He is also author of four books and several articles on leadership. Send comments to the Observer or canutethompson1@gmail.com.


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